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Florida Court Reopens E-voting Paper Trail Case

A federal court put Florida's voting procedures back into the national spotlight Monday, ordering a district judge to reopen a lawsuit seeking paper receipts for electronic touch screen voters.

Florida plans to use the paperless electronic voting machines in 15 counties on Nov. 2. In the state's other counties, voters will use optically scanned or punch card ballots.

U.S. Rep. Robert Wexler (D-Fla.) brought suit in March claiming the e-voting system is illegal since the Florida constitution requires manual recounts in close elections. Electronic voting machines only produce a final tally of the vote.

A district court dismissed the lawsuit earlier this year, largely on technical grounds that a pending state suit over the same issue negated Wexler's federal claim. The 11th Circuit Court of Appeals rejected the lower court's reasoning and ordered the case to proceed, although it is uncertain whether it can be resolved before the election.

"I expect that this decision and the subsequent court case will have a profound effect on future elections," Wexler said in a statement. "I hope that as a result of this federal lawsuit, Florida will adopt the most secure and fair voting procedures possible, so that a means for a recount is available and that every voter will know that their vote is being accurately counted on Election Day."

In his lawsuit, Wexler argued it is unconstitutional to have two different voting systems for recounts. The suit claims that the use of the machines violates the U.S. Constitutional guarantees of equal protection and due process.

The Court of Appeals said the existence of the related lawsuit in Florida state court does not prevent the federal district court from hearing the challenge.

"This important challenge will now be decided on the merits," Matt Zimmerman, an attorney for the Electronic Freedom Foundation, said in a statement. "Floridians will go to the polls in only 36 days, but a great deal of good can be done to improve voting procedures in that time. In the short term and in the long term, we hope that the court requires a voter verified paper ballot for all Floridians."

In the aftermath of the 2000 contested election results, Congress approved almost $4 billion for states to fully upgrade their voting systems by 2006. Florida installed electronic touch voting machines developed by Election Systems and Software and Sequoia Voting Systems. More than 50 percent of the state's registered voters live in the 15 counties that will be using the paperless voting systems.

Until late August, Florida election rules prohibited a manual recount of votes in counties using touch screen technology with election authorities reasoning that there are no physical ballots to count in an electronic voting system. A state court tossed out the rule, saying it contradicted Florida state law mandating manual recounts when certain thresholds are met.

The ruling has the fundamental effect of requiring precincts using e-voting to produce some sort of paper trail in case a recount is needed.

The ruling was a backdoor victory for the American Civil Liberties Union and other groups that have campaigned against e-voting technology because of security concerns with the systems.

According to Washington consulting firm Election Data Services, approximately 29 percent of registered voters in November will use an electronic voting system consisting of hardware and software that interacts through Flash technology to tabulate votes. The number of Americans predicted to cast e-ballots is the second largest percentage behind optical scan ballots at 32 percent. About 22 percent of registered voters will use punch card and lever technology.